#10391 - Police Powers And Preliminaries To Investigation - BPC Criminal Litigation (formerly BPTC) 2024/2025

POLICE POWERS AND PRELIMINARIES TO INVESTIGATION

STOP AND SEARCH

Stop + search requiring reasonable suspicion (PACE s1)

• the power

  • can search for stolen / prohibited articles

1. person

2. vehicle OR anything in / on a vehicle; AND

   • can detain a person OR vehicle for a reasonable time to search (20 mins ok)

   • if discovers items reasonably suspects to be stolen / prohibited, can seize

• reasonable suspicion

  • officer must have RGFS he will find:

3. stolen items

4. prohibited items:

   1. offensive weapons

   2. articles made / adapted / intended for use in theft, burglary, TWOC, fraud, criminal damage

5. illegal fireworks

• reasonable force

  • CAN use

• where is the power available?

  • in a public place

  • in a dwelling only if has RGFB person / person in charge of vehicle does NOT reside in dwelling AND does NOT have permission of resident to be there

• where can the search itself be carried out?

  • must be at or near (reasonable travelling distance) place where person stopped

  • if more than outer clothing removed, should be in private place

• information officers must provide

  • plain clothes officers: documentary evidence that he is a police officer before carrying out a search

  • all officers: name, legal power of stop + search, that being searched + why, rights in circumstances

ARREST WITHOUT WARRANT

Definition of arrest

• arrest = deprivation of liberty, as opposed to restriction of movement:

  • person handcuffed + told would be arrested later

  • taking hold of person's arm without intention to detain / arrest, within ordinary standards of everyday life

• CAN use reasonable force

Police powers of arrest

• the power

  • can arrest without warrant if:

1. suspect (S) is:

   1. about to commit an offence OR officer has reasonable suspicion

   2. in act of committing offence OR officer has reasonable suspicion

   3. officer reasonably suspects offence has been committed: reasonably suspected by officer of being G of that offence

   4. offence has been committed: G of offence OR officer reasonably suspects is G; AND

2. officer has RGFB that the arrest is necessary for following reason:

   1. ascertain real name of S (officer doesn't know, suspects fake name)

   2. prevent S:

      • causing physical injury to self / other

      • suffering physical injury

      • causing loss of or damage to property

      • committing offence against public decency

      • unlawfully obstructing highway

   3. to protect child / vulnerable person from S

   4. allow prompt + effective investigation of offence / conduct of S

   5. prevent disappearance of S obstructing pros

• necessity - exercise of the power

  • use should be:

    • justified

    • proportionate

    • non-discriminatory

  • should be satisfied objectives CANNOT be met by less intrusive means

• re-arrest of person released without charge

  • CANNOT re-arrest S without warrant for offence for which he was originally arrested (and released) unless new evidence justifying further arrest has come to light (s41(9) PACE)

Civilian powers of arrest

• for arrest to be lawful:

1. S in the act of committing the offence OR civilian reasonably suspects (civilian CANNOT arrest for anticipated offence - if do, arrest unlawful unless proved indictable offence committed); AND

2. offence indictable; AND

3. civilian thinks NOT reasonably practicable for constable to arrest instead; AND

4. civilian has RGFB that the arrest is necessary to prevent S:

1. causing physical injury to self / other

2. suffering physical injury

3. causing loss of or damage to property

4. making off before constable can assume responsibility for him

Effecting the arrest

• reasons for arrest (s28 PACE)

  • S must be told reasons for arrest promptly + in ordinary language, even if obvious

  • officer must record reason in notebook at time of arrest, or ASAP after

  • if reason given renders arrest unlawful, still unlawful if was lawful reason which was not communicated

  • arresting officer need not give reasons, colleague can provided ASAP after

• arrest on a holding charge

  • lawful to arrest on lesser charge in order to investigate more serious offences, provided

1. reasonable grounds for arresting on lesser charge; AND

2. real possibility of charge being brought

• caution

  • must caution immediately on arrest (unless condition / behaviour makes it impracticable OR already cautioned immediately before arrest)

• search (s32(1) PACE - see below for detail)

  • arresting officer can search if has RGFB person may present danger to self / others

• conveyance to police station

  • S must be taken to police station ASAP unless

1. reasonable to carry out other investigations first e.g. search of person / premises)

2. released on street bail

   • if detention anticipated to be >6 hours must detain in designated station (designated as suitable for detention of Ss)

Street bail (s30A PACE)

• arresting officer can immediately release S on street bail before conveying to police station, which requires S to attend police station at future date + time

• conditions

  • can attach conditions to street bail for purpose of:

1. securing surrender

2. preventing further offences

3. preventing interference with Ws

4. preventing obstruction of justice

5. protecting S

   • S can apply to vary conditions at mags' or police station

• S's notice

  • officer must give S notice specifying:

1. offence for which arrested

2. grounds of arrest

3. conditions of street bail

• duration of street bail

  • no statutory limit

  • recommended max 6 weeks

Resisting arrest (common law)

• person can resist unlawful arrest, using reasonable force

POWERS OF SEARCH

Entry and search without warrant

• search always allowed with written consent of person entitled to grant entry

• entry for the purposes of arrest etc (s17(1) PACE)

  • entry for arrest etc.

    • constable can enter + search any premises

1. to execute a warrant

2. to arrest person for indictable offence + various other offences

3. to arrest young person committed to LA accommodation

4. to recapture someone unlawfully at large

   • constable must have RGFB person on premises

   • entry to save life / property

     • constable can enter + search any premises

1. to save life or limb (including self-harm)

2. to prevent serious damage to property

   • must apprehend serious / dangerous incident has occurred OR is likely to occur

   • use of force

     • force may be used to enter when necessary

     • if occupier present + available to speak to must explain by what right + for what lawful purpose seeks to enter (unless impossible, impracticable unnecessary)

   • the extent of the search

     • must limit to what is reasonably required to achieve object

• entry and search on arrest (s32 PACE)

  • constable may enter + search any premises (including vehicles) if:

1. person arrested for indictable offence; AND

2. person was in premises at time of - OR immediately before - arrest; AND

3. search is for evidence which relates to offence for which arrested; AND

4. constable has RGFB evidence which relates to offence for which arrested present

   • person does NOT have to own / occupy / control premises cf. s18

   • police CANNOT return to search premises hours after arrest (2 hours 10 mins too long)

   • the extent of the search

     • must limit to what is reasonably required to discover evidence re: offence for which arrested

• entry and search after arrest (s18 PACE)

  • constable may enter + search premises if:

1. person arrested for indictable offence; AND

2. premises ARE occupied or controlled by S (reasonable suspicion NOT enough); AND

3. constable has RGFS evidence is present which: relates to:

   1. offence for which arrested; OR

   2. some other indictable offence which is connected to OR similar to the offence for which arrested; AND

4. authorised in writing by officer of rank inspector+, who is satisfied (a) + (b) are fulfilled; OR

5. inform officer of rank inspector+ ASAP (who makes written record of grounds + evidence sought) if:

   1. presence of person at place other than police station necessary for effective investigation of offence; AND

   2. entry + search before person taken to police station necessary

   • the extent of the search

     • must limit to what is reasonably required to discover evidence re: offence for which arrested

   • constable may seize anything for which he may search

Warrant issued by JP (s8 PACE)

• the two categories of warrant

  • all premises warrant

    • = any premises occupied or controlled by person in application

    • must get written authority of officer of rank inspector+ NOT involved in investigation to search premises NOT specified in application

  • specific premises warrant

    • = premises specified in the application

• the power

  • on application by a constable, JP can issue warrant to enter + search premises (including vehicles, tents, movable structures) if

1. JP has RGFB:

   1. indictable offence committed; AND

   2. material on premises likely to be of substantial value to the investigation of the offence; AND

   3. such material likely to be admissible at trial; AND

2. all premises warrant only:

   1. JP has RGFB necessary to search premises NOT specified in application in order to find material; AND

   2. NOT reasonably practicable to specify in application all premises which might need to be searched; AND

3. 1+ of following satisfied:

   1. NOT practicable to communicate with anyone entitled to grant entry to premises; OR

   2. if it is, NOT practicable to communicate with anyone entitled to grant access to evidence; OR

   3. entry will NOT be granted unless warrant produced

   4. purpose of search may be frustrated / seriously prejudiced unless constable can secure immediate entry

• timing of search(es)

  • any entry / search must be made within 3 months of warrant

  • can have multiple entries if JP satisfied necessary BUT must get written authority of officer of rank inspector+ NOT involved in investigation for...